Wednesday, June 24, 2009

Armed Forces Tribunal

Dear Members,

A copy of the GOI announcement on setting up of the Armed Forces Tribunal is given below. A brief prepared by Maj Navdeep Singh is also placed below. Both are self explanatory and important issues have been highlighted.

What is of interest to the Veterans is that Pensions and other service related grievances are also covered by the AFT and will now go before the tribunal and will hopefully get a sympathetic and much quicker hearing and cut out the long existing delays. Appeal against the judgement of the AFT will only be to the Supreme Court. What is also likely is that if the Cabinet Secretary’s Committee does not give us relief on OROP and we have to take a legal recourse , then the AFT may be our first stop.

Warm regards

Vice Admiral Harinder Singh (Retd)President, NFDC

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PRESS INFORMATION BUREAU (DEFENCE WING)

GOVERNMENT OF INDIA

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MEMBERS OF THE ARMED FORCES TRIBUNAL APPOINTED

New Delhi: June 22, 2009

The Government has approved the appointment of following as Judicial and Administrative Members in the Armed Forces Tribunal (Principal Bench and Various Regional Benches), in scale of pay Rs. 26,000/- (fixed) (pre revised), for a period of 4 years from the date of assumption of the post or till the age of 65 years,. Whichever is earlier:-

Judicial Members

1. Mr. Justice Janardan Sahai

2. Mr. Justice K Padmanabhan Nair (Retd)

3. Mr. Justice Shilendra Shanker Kulshrestha (Retd)

4. Mr. Justice Ghanshyam Prasad (Retd)

5. Mr. Justice Manak Lall Mohta

6. Mr. Justice AC Arumugaperumal Adityan

7. Mr. Justice Anwar Ahmad (Retd)

8. Mr. Justice Bhanwaroo Khan

Administrative Members:

1. Lt. Gen (Retd) S Pattabhiraman

2. Lt. Gen (Retd) Amrik Singh Bahia

3. Lt. Gen (Retd) Madan Gopal

4. Lt. Gen (Retd) Susheel Gupta

5. Lt. Gen (Retd) M L Naidu

6. Lt. Gen (Retd) HS Panag

7. Lt. Gen ( Retd) Thomas Mathew

8. Lt. Gen ( Retd) PR Gangadharan

9. Lt. Gen ( Retd) SS Dhillon

10. Lt. Gen (Retd) ZU Shah

11. Lt. Gen (Retd) RK Chhabra

12. Lt. Gen (Retd) NS Brar

13. Vice Adm (Retd) RF Contractor

14. Lt. Gen (Retd) BS Sisodia

15. Commodore (Retd) Mohan Phadke

The Union Cabinet gave its approval for the creation of 31 posts for the Armed Forces Tribunal on June 24, 2008 paving the way for the creation of the proposed independent adjudicating forum for dispensing cost effective and speedy justice to the armed forces personnel. The posts include 1 of Chairperson and 29 posts of members for the Principal Bench at New Delhi and 8 Regional Branches. It also includes one post of Principal Registrar at the Principal Bench.

The Principal Bench at New Delhi will have three courts and will have jurisdiction over High Courts in the State of Delhi.

Similarly, the Chandigarh and Lucknow Benches will have 3 courts each. The Chandigarh Bench will have jurisdiction over Punjab, Haryana, J&K and Himachal Pradesh. The Lucknow Bench will have jurisdiction over Uttar Pradesh, Uttaranchal, Madhya Pradesh and Chhatisgarh.

The other locations for the Benches with one court each will be Kolkata, Guwahati, Mumbai, Kochi, Chennai and Jaipur.

The Kolkata Bench will have jurisdiction over West Bengal, Orissa, Jharkhand, Bihar and Andaman & Nicobar Islands. The Guwahati Bench will have jurisdiction over Assam, Manipur, Nagaland, Meghalaya, Tripura, Mizoram and Arunachal Pradesh.

The Mumbai Bench will have jurisdiction over Maharashtra, Goa and Gujarat. While Kochi Bench will have jurisdiction over Kerala and Karnataka, Chennai Bench will look after Tamil Nadu and Andhra Pradesh. The Jaipur Bench will have jurisdiction over Rajasthan.

The setting up of the Armed Forces Tribunal has fulfilled a long-felt need of the country’s three defence services. Over 9,800 cases filed by Service personnel are pending before various High Courts. The maximum number of cases numbering 2487 will be transferred to the Chandigarh Bench while 2407 will be adjudicated by the Lucknow Bench. Two thousand three hundred and six (2,306) cases are proposed to be transferred to the Delhi Principal Bench.

The Armed Forces Tribunal Act, 2007 which was passed by the Parliament during the Winter Session of 2007 received the assent of the President on 25th December, 2007. The Act was notified on 28th December, 2007. It provides for adjudication or trial by the tribunal of disputes and complaints with respect to commission, appointments, enrolment and conditions of service in respect of persons subject to Three Services Acts as also for appeals arising out of orders, findings or sentences of court martial held under the said Acts and for matters connected with them. The Act came into force with effect from 15th June, 2008.

The Tribunal will have original jurisdiction in service matters and appellate jurisdiction in court martial matters. Mr. Justice Ashok Kumar Mathur was appointed as the Chairman of the Tribunal. The Tribunal will consist of 1 Chairperson, 14 judicial and 15 administrative members.

The administrative members shall be officer of the rank of Major General or above in the Army or equivalent rank in the Navy or the Air Force with three years of service in that rank. JAG of three Services with at least one year of service as JAG shall also be eligible. The judicial member should be serving or retired judge of the High Court. All appointments to the Tribunal are made in consultation with the Chief Justice of India. The Tribunal has powers to punish for its contempt.

Comments by Maj Navdeep Singh

Many pejorative adjectives have been used to describe the present system of military justice in India, but does it deserve such criticism ? More than the statutes themselves, the problem perhaps is with the executors, the method of understanding the spirit behind, and the final implementation of the statutory provisions of the Army Act, 1950, Air Force Act, 1952 and Navy Act, 1957. The provisions of these Acts, though oppressive in parts, were never meant to be draconian and do have a number of inbuilt checks and balances, but of course the method of using the best of these is open to debate. So what was wrong with the system that forced the govt to bring in the Armed Forces Tribunal Act, 2007? the one line answer echoed in legal corridors would be - ‘lack of an effective appeal’. The same sentiment was reflected by the Supreme Court in the case of Lt Col Prithi Pal Singh Bedi Vs Union of India (1982) where the Court observed that the absence of even one appeal and power to review evidence was distressing and a glaring lacuna.

Where in the world would you find a judicial system without an appeal, here in India of course. The three Acts did not contain a single provision that could be deemed akin to a judicial appeal. There was a provision of pre and post confirmation petitions but these were rarely used in a fashion more than a mere formality. No judicial authority had the jurisdiction to look into or examine the evidence on the basis of which court martial sentences were rendered or the merits of the issues involved. The High Courts and the Apex Court under the writ jurisdiction could of course intervene but only in cases where there was a flouting of statutory provisions or when the sentences rendered were particularly harsh and not commensurate with the offence. The Supreme Court further observed in Ranjit Thakur Vs Union of India (1987) that conscience shaking sentences which are irrationally disproportionate would not be immune from judicial review. The Supreme Court opined that irrationality and perversity were definite grounds wherein Courts could intervene. These shortcomings notwithstanding, it would not exactly be appropriate to say that the three military Acts are without enough checks to avoid miscarriage of justice, there are ample provisions parallel to those available under the criminal system of jurisprudence but the problem remains that unlike the criminal courts, courts martial are presided over not by judicial officers but by officers of the regular army who neither have the acumen nor the bent towards legal and judicial modalities. Moreover, all procedures finally leading to conviction by a court martial (such as Courts of Inquiry, Summary of Evidence etc) are handled by military personnel who may just follow provisions of military Acts and Rules in formal letter but not in spirit - and this makes all the difference. And this also brings us to the answer why a body of professionals such as the AFT is so very urgently required to sit in judgement and appeal over justice rendered to men and women in uniform by another set of men and women in uniform.

The military Acts of India were derivatives of similar Acts of the British and that was the basis why these Acts seemed oppressive. These were moulded as such so as to maintain a grip on discipline over the native Army. The existing Army Act of India, for example, can trace its origin to East India Company’s Mutiny Act, 1754 and the Articles of War of the late 1800s, followed by the Indian Army Act of 1911. Of course this could not be justification enough to retain provisions such as Summary Court Martial after independence or to use terms as ‘customs of war’ in these Acts leading to ambiguity of action by those who want to repress. There is no place for ‘customs’ and ambiguity in criminal jurisprudence and all provisions certainly need to be codified and brought out in black and white. Yes, there may be a difference in the quantum of punishment prescribed for offences in operational and non-operational areas and there may be operation-specific offences but all need to be put in words without leaving any scope of indistinctness in action. Other countries following contemporary systems of justice such as the UK and the USA have since long recognised the need of reducing ‘customs’ to the barest minimum and having an elaborate system of appeal, but India, despite observations by various High Courts, committees and even the Supreme Court, failed to come out of a crude grundnorm which forms the basis of the Army, Navy and Air Force Acts till date.

So how would the AFT help? Firstly, the AFT would be a forum of professionals with judicial and military background, a perfect mix to handle legal issues of the military. While the Chairperson can either be a retired Judge of the Supreme Court or a retired Chief Justice of a High Court, Judicial Members shall be former Judges of High Courts. The Administrative Members would be retired Major Generals or above of any of the three defence services. Each bench of the Tribunal shall consist of a Judicial and an Administrative Member. The Tribunal shall have the power to deal with all findings, orders and decisions of Courts Martial and related matters. As a welcome measure, the AFT has also been granted the power to release persons under military custody on bail. The AFT has also been conferred with powers of Contempt. Unlike the Central Administrative Tribunal (CAT), an appeal from the AFT shall lie directly with the Supreme Court.

Besides courts martial, the subject matter of the AFT shall also include service matters such as remuneration, pension, retiralbenefits, tenure, appointment, seniority, promotion, superannuation and the like. However Summary trials where dismissal is awarded or Summary Court Martial awards except where dismissal or imprisonment over three months is awarded, would not be under the ambit of the Tribunal. Transfers, postings and leave related matters shall also not be under the purview of the AFT. In case of service matters, even dependants, successors and heirs would be able to approach the Tribunal for justice.

The setting up of the AFT which is bound to bring the much needed relief to military litigants, shall also ensure handling of critical issues by former members of judiciary who would be from outside the ‘chain of command’ and therefore dealing cases with a clean slate with no biases or prejudices. They shall of course be assisted by former military officers - the administrative members, who would, with consensus, be providing important inputs resulting in what hopefully would be well-rounded judicial pronouncements meeting the aspirations of all affected. The AFT would also be in conjunction with the observations by the Supreme Court about providing a proper appellate body for courts martial. But the AFT, without in-house introspection (below) would not be an answer to the shortcomings of the system. What needs to be eliminated is the subjectivity at all levels, starting from initial stages of Inquiry ending with the Trial. The letter of law at all stages needs to be followed in spirit and not as a sheer formality, an effective system of defence for the accused needs to be put into place and senior officers in the chain of command need to be sensitised so as not to interfere in the deliverance of justice in the military. Presiding officers and officers of the JAG Branch have to be absolutely inert from slanted influences and pre-decisions at all levels.

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